Citation Nr: 1804390 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-13 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable evaluation for history of perforation tympanic membrane (ear drum). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Army from February 1951 to February 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing, which was scheduled for November 2015. However, as the Veteran failed to report to the hearing and did not file a request for a new hearing, the Board previously found that the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704 (d) (2017). This case was previously before the Board in February 2016 and April 2017, at which times it was remanded for further development. As the requested development has been completed, no further action to ensure substantial compliance with the remand directives are required. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's perforated eardrum is assigned a noncompensable disability rating, which is the maximum schedular rating authorized under Diagnostic Code 6211. CONCLUSION OF LAW The criteria for a compensable initial rating for a perforated right eardrum have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.31, 4.87, Diagnostic Code 6211 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to provide claimants with notice and assistance in substantiating a claim. No further notice is required regarding the downstream issues of a higher initial rating for history of perforation of the tympanic membrane as it stems from the grant of service connection, and no prejudice has been alleged. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. The Veteran was afforded VA examinations in May 2010 and July 2017. Given the above, the Board will proceed to the merits of the appeal. Initial Increase Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The appeal arises from the original assignment of a disability evaluation following an award of service connection, thus the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Perforated Tympanic Membrane The Veteran's perforated tympanic membrane is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6211. Under Diagnostic Code 6211, perforation of the tympanic membrane (eardrum) warrants a noncompensable rating. Therefore, a compensable rating is not available for tympanic membrane perforation under Diagnostic Code 6211. In May 2010, the Veteran underwent a VA examination. He denied any history of ear pain or drainage within the past year. He reported periodic dizziness associated with prolonged bending and/or rapid rising. Examination results revealed Type A tympanograms, bilaterally, consistent with intact tympanic membranes and normal middle ear function. 5/4/2010 VA Examination. The Veteran was afforded another VA examination in July 2017. It was noted that tympanograms were repeatedly normal. Acoustic emittance results revealed Type A tympanograms, bilaterally; consistent with intact tympanic membranes and normal middle ear function. He did not have signs or symptoms attributable to Meniere's syndrome. He did not have any signs or symptoms attributable to chronic ear infection, inflammation, cholesteatoma or any other manifestation. Examination of the tympanic membrane showed evidence of a healed tympanic membrane perforation. The examiner concluded that there was no change in the diagnosis and no additional diagnoses were rendered. 7/14/2017 C&P Examination. The Veteran may only receive a higher rating under a different diagnostic code for diseases of the ear. Although the medical evidence of record shows that the Veteran's perforated right eardrum has been accompanied by hearing impairment, he is currently service-connected separately for bilateral hearing loss at a noncompensable rating. There is no evidence of otosclerosis, Meniere's syndrome, loss of auricle, malignant neoplasm of the ear, benign neoplasm of the ear, or chronic otitis externa. See also 38 C.F.R. § 4.87, Diagnostic Codes, 6202, 6205, 6207, 6208, 6209, and 6210. Therefore, those diagnostic codes cannot be applied, and the Veteran's history of perforated right eardrum must continue to be rated as noncompensable under Diagnostic Code 6211. See Butts v. Brown, 5 Vet. App. 532 (1993) (stating that the choice of diagnostic code should be upheld if it is supported by explanation and evidence). While at the 2010 VA examination, the Veteran reported periodic dizziness associated with prolonged bending and/or rapid rising. Under Diagnostic Code 6204, a 10 percent rating is warranted for occasional dizziness and the maximum schedular rating of 30 percent is warranted for dizziness and occasional staggering. Id. A Note following Diagnostic Code 6204 provides that: "Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code." The pertinent medical and lay evidence does not credibly confirm this, to include via a statement from a family member, colleague, or VA examiner. Indeed, if credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation and capable of independent verification. Petitti v. MacDonald, 27 Vet. App. 415, 427 (2015) (stating that observations from a lay person who witnesses a veteran's painful motion satisfies the requirement of objective and independent verification of a veteran's painful motion (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Thus, a rating under Diagnostic Code 6204 is not for application. For all the foregoing reasons, the Veteran's claim for entitlement to a compensable rating for perforation of tympanic membrane must be denied. As the preponderance of the evidence is against the claim for an increased compensable rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). ORDER An initial compensable rating for perforation of tympanic membrane (ear drum) is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs